NON-COMPETE AND NON-SOLICIT AGREEMENT
EXHIBIT 10.70
FOR GOOD
AND VALUABLE CONSIDERATION, including the award of Restricted Stock Units, as
more fully described in the accompanying letter (10% of which will be fully
vested upon grant), hereby acknowledged, First Albany Companies, Inc. and its
subsidiaries ("First Albany") and its employee who is a signatory hereto (the
"Key Employee Partner") (First Albany and the Key Employee Partner being
referred to, collectively, as the "Parties") agree as follows:
1. Non-Compete Covenant.
Prior to December 31, 2008, the Key Employee Partner shall not participate in
the ownership, management, operation or control of a Competitor* or be employed
by or perform services for a Competitor in a position substantially similar to
the Key Employee's position at the Company; provided, however, that the Key
Employee Partner may own, solely as a passive investment, securities of any
entity traded on any national securities exchange if the Key Employee Partner is
not a controlling person of (nor owns individually or as a member of a group, 5%
or more of) such entity.
2. Non-Solicit Covenant.
In the event that the employment of the Key Employee Partner with the Company
terminates for any reason, then until the later of (i) twelve months after such
termination or (ii) December 31, 2008, the Key Employee Partner shall not,
directly or indirectly, solicit for employment or hire anyone who was an
employee of the Company within the period of 180 days prior to any
termination.
3. Inapplicability of
Non-Compete Covenant in Certain Circumstances. The foregoing Non-Compete
Covenant shall not apply to the Key Employee Partner following any termination
of his/her employment by the Company without cause.
4. Forfeiture of RSUs Upon
Breach. Upon any breach of the Non-Compete Covenant or the Non-Solicit
Covenant by the Key Employee Partner, the Key Employee Partner shall forfeit any
outstanding Restricted Stock Units ("RSUs').
5. Remedies. With
respect to the Non-Compete Covenant and the Non-Solicit Covenant, the Parties
acknowledge and agree that:
(i) if,
in any judicial proceeding, a court shall deem part of the Non-Compete Covenant
or the Non-Solicit Covenant invalid, illegal or unenforceable because its scope
is considered excessive, it shall be modified so that the scope of the
Non-Compete Covenant or the Non-Solicit Covenant, as applicable, is reduced only
to the minimum extent necessary to render the modified covenant valid, legal and
enforceable.
(ii) it
is impossible to measure in money the damages that will accrue to the Company in
the event that the Key Employee Partner breaches the Non-Compete Covenant or the
Non-Solicit Covenant. In the event that the Key Employee Partner.
——————————
* For
purposes of this agreement, the term "Competitor," means any broker-dealer or
financial advisory firm whose principal place of business is in the United
States.
breaches
the Non-Compete Covenant or the Non-Solicit Covenant, the Company shall be
entitled to an injunction, a restraining order or such other equitable relief,
including, but not limited to, specific performance (without the requirement to
post bond) restraining the Key Employee Partner from violating such covenant. If
the Company shall institute any action or proceeding to enforce the Non-Compete
Covenant or the Non-Solicit Covenant, the Key Employee Partner hereby waives the
claim or defense that the Company has an adequate remedy at law and agrees not
to assert in any such action or proceeding the claim or defense that the Company
has an adequate remedy at law. In addition, the Company shall retain all
remedies available to it at law. The Non-Compete and the Non-Solicit Covenants
shall be in addition to any restrictions imposed on the Key Employee Partner by
statute, at common law or under any other agreement to which the Key Employee
Partner is a party.
AGREED
AND ACCEPTED:
THIS 19
DAY OF SEPTEMBER 2007
Xxxxxxxx
Xxxxxxx-Xxxxx FIRST
ALBANY COMPANIES INC.
Name of
Employee (please print)
/s/ Xxxxx
XxXxxxxxx
/s/ Xxxxxxxx
Xxxxxxx-Xxxxx Xxxxx
XxXxxxxxx
Signature
of Employee (please sign)
